Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Breach of contract; Statutory conversion; Automated Clearing House (ACH)
The court concluded the trial court did not err by granting defendant-Huntington’s summary disposition motion and dismissing plaintiff-Garco’s breach-of-contract claim under MCR 2.116(C)(10). But it held that because conflicting evidence was presented as to Huntington’s “retention of funds fraudulently debited from Garco’s account, the trial court erred, on the current record, by granting” Huntington summary disposition on the statutory-conversion claim. The case arose “out of a series of fraudulent transactions that debited funds from Garco’s commercial bank account at” Huntington. The trial court did not err by granting Huntington’s summary disposition motion and dismissing Garco’s common-law breach-of-contract claim under MCR 2.116(C)(10) because Garco failed to establish a genuine issue of material fact as to whether there was a breach of contractual duty. “In response to Huntington’s summary disposition motion, Garco proffered two documents that Huntington purportedly breached. The first document was Garco’s corporate resolution to open and maintain a bank account at Huntington. The corporate resolution addressed Huntington’s designation as Garco’s bank and the individuals authorized to transact on Garco’s behalf. The second document was an authorization and agreement for Garco’s receipt of Huntington’s treasury management services. The authorization incorporated by reference a separate treasury management services agreement and provided that Garco declined to implement Huntington’s recommended dual-authorization security procedure for ACH transactions. Neither document addressed Huntington’s obligations in the event of one or more unauthorized transactions debiting funds from Garco’s account. And Garco failed to identify any provision of the separate treasury management services agreement that it claims Huntington breached.” As a result, Garco “failed to establish a genuine issue of material fact as to whether Huntington breached any of the parties’ alleged contracts.” However, the court determined that “Garco established a genuine issue of material fact as to whether Huntington retained and possibly thus converted a portion of the funds fraudulently debited from Garco’s account to its own use.” Affirmed in part, reversed in part, and remanded.
Title VII; Religious discrimination regarding COVID -19 policy; “Failure to accommodate”; 42 USC § 2000e-(j); Whether the conflict was “sincerely based on a religious belief,” rather than on “some other motivation”
In this Title VII religious discrimination/failure-to-accommodate case, the court held that plaintiff-former employee (DeVore) failed to show any conflict between her religion and defendant-former employer’s (the University of Kentucky) test-or-vaccinate policy (the Policy). Thus, it affirmed summary judgment for defendant. When the University announced that employees were to return to campus in the wake of the COVID-19 pandemic, DeVore, a department manager, unsuccessfully requested that she be allowed to return only three days a week and remain home two days. When the University implemented the Policy, she made several attempts to obtain a religious exemption, but the University denied her requests. She then “submitted a religious accommodation request and filed a complaint of religious discrimination.” The University conducted an investigation, denied her request, and issued a letter directing her to begin complying with the Policy. It “clarified that DeVore could comply with the Policy through oral swab or saliva testing in lieu of the nasal swab tests to which she had previously objected.” She eventually retired and filed this suit. The court explained that in these cases, a court must “ensure the asserted conflict is ‘sincerely based on a religious belief,’ rather than ‘some other motivation’, . . . and that the belief actually conflicts with a workplace policy[.]” The court noted that DeVore’s prima facie case had to “establish a religious conflict with each of the testing options the University offered—nasal, oral swab, and saliva.” It determined that her “religious opposition to the Policy flows almost entirely from her objections to nasal PCR testing and vaccination, objections she raised before the University informed her that she could comply with the Policy via oral swab or saliva tests, and she fails to account for these alternatives. Her invasiveness objection responds only to nasal swab testing, her manipulation objection ignores testing as a bona fide substitute for vaccinating, and her coercion objection doubles down on her manipulation objection, supplementing it with only her ‘personal’ characterization of mandatory testing as inequitable and unfair.” While her objections may have satisfied Title VII’s pleading requirements they did not establish at summary judgment “a conflict between DeVore’s religion and the Policy. DeVore’s Title VII claim fails with them.”
Motion to suppress evidence; Chemical analysis results; Compliance with MCL 257.625a(6)(e); The exclusionary rule; People v Hawkins; Constitutionality of MCL 257.625a(6)(e); People v Perlos; Operating a vehicle while intoxicated (OWI); Operating a motor vehicle with a suspended or revoked license (OWSL)
The court held that the trial court erred in granting defendant-Barton’s motion to suppress the results of a chemical analysis of his blood based on an alleged lack of compliance with MCL 257.625a(6)(e). It found that even “if the prosecuting attorney’s request that the medical facility provide the chemical analysis to” an officer (L) constituted “a technical violation of MCL 257.625a(6)(e), exclusion was not the proper remedy.” Finally, under Perlos, defendant’s challenge to the constitutionality of MCL 257.625a(6)(e) failed. He was charged with OWI, third offense and OWSL, second offense. “MCL 257.625a(6)(e) permits the admission of chemical analysis from blood samples taken for medical treatment following an accident and requires the medical facility to disclose the information to a prosecuting attorney.” It appeared the analysis here would “fall squarely within the statute, but for the fact that [L] testified that he, not the prosecuting attorney, requested the analysis results.” The trial court granted the “motion to suppress under the belief that [L] testified accurately that he was the person responsible for seeking Barton’s chemical analysis results. Although it was the prosecution, not the defense, that elicited this testimony during the suppression hearing, that factual representation is incorrect. In its motion for reconsideration, the prosecution submitted new evidence that the prosecuting attorney was the party responsible for contacting the hospital and requesting Barton’s medical record, as required under MCL 257.625a(6)(e).” The court noted the statute “also provides that the medical facility must provide the chemical analysis results to a prosecuting attorney, as opposed to law enforcement, after the prosecuting attorney requests a defendant’s results from the” facility. There was no question that the facility here “provided the chemical analysis to [L], not the prosecuting attorney. But it did so at the prosecuting attorney’s request.” The court found that a “hypertechnical reading of MCL 257.625a(6)(e) would put the prosecuting attorney in the chain of custody for critical evidence in many drunk driving cases, effectively making the prosecutor a witness. This cannot be what the statute contemplates.” Reversed and remanded.
Motion to withdraw a plea; MCR 6.302(A) & (B)(2); Defects in the plea-taking process; The trial court’s failure to inform defendant that mandatory lifetime electronic monitoring (LEM) was a required condition of his sentence; Sentencing; Scoring of OV 10; MCL 777.40(1)(a); People v Cannon; “Predatory conduct”; Entitlement to resentencing
The court held that defendant was entitled to withdraw his plea to CSC I “because the plea-taking court failed to inform him that LEM was a sentencing requirement for his conviction.” Further, the trial court erred in scoring 15 points for OV 10. Thus, the court remanded the case to the trial court to give him “the opportunity to withdraw his plea.” If he elects not to do so, “he is entitled to resentencing.” The prosecution conceded on appeal that defendant was entitled to withdraw his plea due to the defect in the plea-taking process related to LEM, and the court agreed. “The remedy for a plea that failed to comply with MCR 6.302(B) is to permit the defendant an opportunity to withdraw the plea.” Because he may elect not to do so, the court also addressed his claim that the trial court erred in scoring OV 10. It agreed that he “undoubtedly engaged in predatory conduct during his subsequent sexual assaults by providing the victim with gifts or demanding sexual favors in exchange for items the victim needed.” However, there was no evidence in the record “to support the trial court’s factual determination that defendant threatened or bribed the victim during the sentencing offense. Because [he] is entitled to be sentenced on accurate information and a 5-point reduction in defendant’s OV score alters the applicable sentencing grid,” he was entitled to resentencing.
Sentencing; Scoring of OV 19; Interference with the administration of justice; MCL 777.49(b) & (c); People v Hershey; People v Barbee; Distinguishing People v Deweerd; Flight; People v Sours
The court held that the trial court did not err by scoring 10 points for OV 19. Defendant pled guilty to conducting a criminal enterprise and maintaining a drug house, arising out of a scheme to deliver meth. The trial court sentenced him to 72 to 240 and 6 to 24 months respectively. On appeal, the court rejected his argument that the trial court erred by scoring 10 points for OV 19 on the basis that he interfered with the administration of justice. He claimed he “had no duty to return to his residence and assist the officers in executing the search warrant or to remain in the state of Michigan thereafter.” It found his reliance on Deweerd was “misplaced because his conduct amounted to more than the mere failure to assist in the investigation. Rather, [he] fled the state after he drove by his residence and realized that law enforcement officers were searching the residence. The purpose of defendant’s flight to Illinois was ‘to avoid being caught and held accountable’ for his conduct.” And his “actions constituted an attempt to ‘prevent law enforcement from being able to arrest’ him.” Affirmed.
Motion for relief of judgment; “Reasonable time”; MCR 2.612(C)(2); Perkins v SMART (Unpub); Peterson v Oakwood Healthcare, Inc; Evidence & criteria for relief from judgment
The court held that “the trial court abused its discretion in granting plaintiff’s motion for relief and setting aside the order granting defendant’s motion for partial summary disposition.” It concluded “plaintiff failed to move for relief within a ‘reasonable time.’” It further found that in “light of Peterson, a subsequently released case may not serve as the ground for relief from judgment under MCR 2.612(C)(1)(f).” Finally, it determined that “plaintiff failed to satisfy the criteria necessary to warrant relief from the order granting defendant’s motion for partial summary disposition.” As to whether plaintiff moved for relief within a “reasonable time,” the court held that under the circumstances, “the timeframe was unreasonable.” She failed to “explain why she waited 19 months to move for relief and waited for more than five months after the” decision on which she relied, Perkins, was issued. And while she claimed “that the unpublished Perkins decision served as the foundation for her motion, she still waited over five months after it was issued to file the motion for relief from order. Because of the delay, trial was scheduled to occur within a month of the hearing on the motion for relief from order, and the grant of the motion substantially altered the breadth of the case, specifically the services and costs that defendant would have to challenge at trial.” More importantly, Peterson controlled this appeal. “In light of Peterson, a subsequently released case may not serve as the ground for relief from judgment under MCR 2.612(C)(1)(f).” Further, she did not “establish that defendant engaged in misconduct and deliberately delayed filing the dispositive motion in order to obtain the advantage of the one-year back rule.” Reversed and remanded.
Negligent operation of an ambulance; Governmental immunity; The motor-vehicle exception; MCL 691.1405; Circumstances under which an ambulance driver can drive through a red light &/or exceed the posted speed limit; MCL 257.603(3)(b) & (c); MCL 257.603(3) & (4); Flanagin v Kalkaska Cnty Rd Comm’n; Distinguishing Ferriole v City of Detroit (Unpub)
The court held that the trial court did not err by denying defendants’ (city and ambulance driver-Baugh) motion for summary disposition on the basis that plaintiff’s claims were barred by governmental immunity. Plaintiff sued defendants alleging Baugh was negligent or grossly negligent in his operation of the ambulance he was driving, which caused the collision in which her mother suffered a traumatic brain injury that eventually led to her death. The trial court found “there were several issues of fact whether Baugh drove appropriately under the circumstances, including discrepancies in what speed [he] was traveling, whether [the other driver, N] observed the ambulance’s lights and sirens, and whether Baugh operated the ambulance safely in a way to prevent injuries.” On appeal, the court rejected defendants’ argument that the trial court erred by denying their summary disposition motion because plaintiff failed to establish a genuine issue of material fact as to Baugh’s negligent operation of an ambulance. “Contrary to defendants’ argument, there is a question of fact whether the exceptions in MCL 257.603(3) even apply because there is a question of fact whether Baugh’s ambulance’s lights were flashing before the accident.” Although Baugh and a witness said that they were, N sharply disputed this, insisting “during his deposition that the ambulance’s lights were not flashing because, if they were, he would have seen them as it was dark outside at the time of the crash.” However, even if “the exceptions in MCL 257.603(b) and (c) applied, there remain questions of fact whether Baugh’s operation of the ambulance was negligent.” A trier of fact could find “Baugh did not ensure that it was safe to proceed through the red light before doing so (despite reducing his speed), and was thus negligent in his operation of the ambulance.” If N was “driving within the speed limit before the accident and merely proceeded through a green light, and Baugh simply failed to see him, then a trier of fact could reasonably conclude that Baugh did not ensure that it was, in fact, safe to proceed through the red light before doing so, and was thus negligent in his operation of the ambulance.” The court noted that, here, “unlike in Ferriole, the disputes in the evidence cannot be resolved by reviewing a video of what happened. Instead, we must rely on testimony, witness statements, and reports about what may or may not have occurred. That evidence is rife with discrepancies[.]” Affirmed.
Termination under §§ 19b(3)(b)(i), (j), & (k)(iii); Admission of a child’s statements regarding sexual abuse; Hearsay; The “tender years exception”; MCR 3.972(C)(2)(a); In re Snyder; Reliability; Best interests of the child; In re Olive/Metts Minors; Ineffective assistance of counsel; Failure to make a futile objection
Holding that (1) respondent-father’s substantial rights were not affected by the trial court’s error in holding the tender years hearing after the adjudication and termination hearing, (2) §§ (b)(ii), (j), and (k)(iii) were met, and (3) termination was in the child’s best interests, the court affirmed termination of his parental rights. His rights were terminated based on his sexual abuse of his young son. The court agreed with respondent that the trial court erred by not holding the tender-years hearing at the proper time, but found this error did not affect his substantial rights. “The trial court conducted the hearing after the termination hearing and gave respondent an opportunity to challenge the evidence and argue that it should be excluded.” In addition, it “did not make any determination regarding termination until after it resolved the evidentiary issue.” And it did not err by finding the child’s statements, admitted through other witnesses, “bore sufficient indicia of trustworthiness.” The court noted the child’s statements “were spontaneous and repeated consistently.” Moreover, he “exhibited behavior that was atypical for his age and no evidence suggested that he had a motive to fabricate the allegations.” Because the trial court did not err by admitting the testimony, it “properly relied on the evidence to support its determination that the statutory grounds for termination had been proven.” And because respondent conceded “that the statutory grounds were met if the evidence was admissible, he is not entitled to relief on this issue.” The court also rejected his claim that termination was not in the child’s best interests, noting the trial court thoroughly explained its reasoning. It “discussed the disorganized attachment between [them], concerns about [the child’s] safety if returned to [his care], [his] failure to take any steps to rectify the circumstances, the danger of allowing [the child] to have any contact with [him] because of [his] failure to rectify the circumstances, the sexual abuse itself, and the mother’s ability to provide care for” the child. The evidence supported its reasoning. Finally, the court rejected his contention that his trial counsel rendered ineffective assistance of counsel by “failing to request that the tender-years hearing be held before the adjudication trial, failing to object to the hearsay testimony presented at the adjudication trial and termination hearing, and failing to argue that the trial court’s findings” about the child’s “best interests were insufficient.” Respondent’s trial counsel was not ineffective for “failing to raise meritless arguments or make futile objections.”
Jurisdiction; Doctrine of anticipatory neglect; In re Kellogg & In re LaFrance; Reasonable reunification efforts; MCL 712A.19a(2)(c); Termination under § 19b(3)(b)(i); Children’s best interests
The court rejected respondent-mother’s “argument that the trial court erred by applying the doctrine of anticipatory neglect, and conclude[d] that the trial court did not clearly err by exercising its jurisdiction over ES.” In addition, “the trial court did not err by finding that the DHHS did not have to make reasonable efforts toward reunification” under MCL 712A.19a(2)(c). Further, the statutory ground for termination was established and the trial court did not clearly err by finding that termination of respondent's parental rights was in ES’s best interests. She argued “that the trial court erred by exercising jurisdiction over ES because the doctrine of anticipatory neglect did not apply in light of the significant differences between ES” and a different child, PG. Respondent argued that this case was like Kellogg and LaFrance “in that there were marked and significant differences between ES and PG, but the record indicates otherwise.” The CPS “investigator in ES’s case testified that PG was approximately one month old when he sustained serious injuries and was diagnosed with shaken baby syndrome. ES was one day old when the DHHS removed him from respondent’s care, and the trial court recognized that both ES and PG were infants entirely dependent on [her] for care at the time of removal. [She] testified in her prior termination proceedings that she needed help caring for a child and could not do so without assistance.” While she “lived with her mother when ES was born, [her] mother informed the DHHS that she frequently traveled for work and would not help respondent care for ES. Respondent provided no evidence that she had additional support or was capable of caring for ES on her own. Further, the clinical psychologist who performed [her] psychological evaluation in her prior child-protective proceeding testified in this case that [her] cognitive impairments prevented her from caring for a child on a regular or consistent basis and making appropriate decisions to ensure a child’s welfare. In addition to the psychologist’s testimony that respondent’s impairments were chronic and could not be rectified with medication, [she] acknowledged that she still had cognitive impairments.” Thus, the evidence reflected “that there were no significant differences between ES’s and PG’s needs or respondent’s circumstances with each child.” Affirmed.
Will interpretation; Order for a property sale; Applicability of the statute of limitations (SOL) for breach of contract; Laches; Township of Yankee Springs v Fox; Personal representatives (PRs)
The court held that the probate court properly gave effect to the decedent’s (William) intent by ordering the liquidation of the real property at issue so that William’s children could be paid. The contract breach SOL did not apply, and the probate court did not err in rejecting appellant-Lull’s laches argument. When William died in 2007, he was married to nonparty-Michaelene. He had three children from a prior marriage – Donald, Robert, and appellee-Clark. A few months before his “death, he conveyed parcels of real property that he owned to himself and Michaelene as tenants by the entireties. Michaelene executed an agreement in consideration of the conveyances stating that she agreed to pay Clark, Donald, and Robert equal amounts totaling $200,000 within three years after William’s death.” Days later, William executed his will, devising all “his real property to Michaelene, including” the Lake Street property, but it remained titled in his name only. She continued to live there after his death. “Lull, her son, eventually moved in with her” and was appointed PR of her estate after her death. He “filed a petition to open William’s estate so that the Lake Street property could be transferred from William’s estate to Michaelene’s estate. Clark opposed the transfer on the basis that Michaelene failed to pay” the $200,000. After a bench trial, the probate court ordered that the “property be listed for sale and that $170,000 of the sale proceeds be paid to Robert’s descendants, Clark, and Donald.” The court noted that while “the will directed that the Lake Street property, in addition to others, be given to Michaelene, . . . the Lake Street property had to be liquidated in order to carry out William’s intent that his children be given $200,000. The probate court determined that ‘there was a promise to pay’ that was protected by ‘the fact that the most valuable property was titled in [William’s] name alone.’” Thus, it concluded “William had made it clear that his children would be compensated out of his estate and that the probate of the Lake Street property was inevitable if Michaelene failed to pay the $200,000.” As to Lull’s SOL argument, the “probate court did not enforce the agreement between William and Michaelene” – it interpreted his will. Finally, as to laches, Lull “failed to establish that any delay on behalf of William’s children prejudiced Michaelene or himself.” Affirmed.